Public Order Offences Flashcards
PUBLIC ORDER OFFENCES
- Affray - Section 3 Public Order Act 1986;
- Fear Of Provocation Of Violence - Section 4 Public Order Act 1986;
- Intentional Harassment, Alarm or Distress - Section 4A Public Order Act 1986;
- Harassment, Alarm or Distress - Section 5 Public Order Act 1986; and
- Intentionally Or Recklessly Causing A Public Nuisance - Section 78 Police Crime Sentencing & Courts Act 2022.
Learning Points
Applicable To All 3
Offences Of Riot,
Violent Disorder &
Affray
Sections 1-3 Public Order Act 1986
The Location Of The
Riot, Violent Disorder
Or Affray?
Section 1(5), 2(4) & 3(5) Public Order Act 1986
All 3 offences can take place anywhere
i.e. in either:
*A public place; or
*A private place.
The Person Of
Reasonable Firmness
Present At The Scene
Section 1(4), 2(3) & 3(4) Public Order Act 1986
For all 3 offences - no person of
reasonable firmness either:
*Need actually be; or
*Be likely to be
.present at the scene.
The Operation Of The
“Hypothetical
Bystander Of
Reasonable Firmness
Present At The Scene”
Test
R v Sanchez (1996) 160 JP 321
It is necessary to prove that
the defendant’s conduct
would have caused
a hypothetical bystander,
if they were present at the scene,
to fear for their personal safety.
For all 3 offences
the hypothetical bystander
of reasonable firmness
will not actually
need to be at the scene.
The question is
had they been there
-would they
have feared
for their personal safety?
Can A Police Officer Give
Evidence That A Person Of
Reasonable Firmness,
Would, If They Had Been
Present At The Scene,
Have Feared For Their
Personal Safety?
Yes
The officer must put forward hard facts to
justify this opinion and the court must then
apply an objective test to that evidence as to
whether a person of reasonable firmness
would have feared for their personal safety
Effect Of A Person Of A
Sensitive Disposition,
Who Was Actually
Present At The Scene,
Fearing For Their
Personal Safety?
The accused will only be guilty
if the hypothetical bystander
of reasonable firmness
would also have
feared for their personal safety
if they were placed in the same situation.
Persons Who Can
“Handle Themselves”
Who Are Present At
The Scene Who Do Not
Fear For Their Personal
Safety
It is irrelevant whether the
person who can “handle themselves”
feared for their personal safety
-what matters is whether the
hypothetical bystander
of reasonable firmness
would also have feared for their personal
safety if they were placed in the same
situation.
Definition Of
Unlawful Violence
Section 8 Public Order Act 1986
Any violent conduct directed towards either:
Target 1 — Persons
This applies to all 3 offences
of:
* Riot;
* Violent disorder; and
* Affray.
Target 2 — Property
This only applies to the
offences of:
* Riot; and
* Violent disorder.
NB — does not apply to affray
The Broad Scope Of
The Definition Of
Unlawful Violence
The definition is not restricted to conduct that
either:
*Causes; or
* Is intended to cause
either:
* Injury; or
*Damage…
.but includes any other violent conduct
(for example — throwing at or towards
a person a missile
of a kind capable of causing injury
which does not hit or falls short).
Defences Applicable To
All 3 Offences Of Riot,
Violent Disorder &
Affray
Section 6(5) Public Order Act 1986
Defences
2 specific defences
general defences
Specific Defence 1
Non self-induced
Intoxication.
i.e. the intoxicant was “slipped in”
Specific Defence 2
Intoxication
caused solely
by the taking or administration
of a substance in the course of
medical treatment
i.e. the intoxicant was “medicine”
Affray
Section 3(1) Public Order Act 1986
A person is guilty of affray if they either:
*Use; or
*Threaten (to use)
…unlawful violence towards another
person (NB — not property). ..
.and their conduct
(or if 2 or more persons use or threaten
violence — their conduct taken together)
is such that it would cause
a person of reasonable firmness
present at the scene to
fear for their personal safety.
The Number Of
Persons Present?
Minimum?
There must be a minimum
of 1 person present
at the scene.
There are really 3 “parties”
involved in an affray.
Party 1 - Maker
The individual
making threats.
Party 2 - Subject
The person subjected
to the threats.
Party 3 - Hypothetical
Reasonable Person
The hypothetical person
of reasonable firmness
who does not need to be physically present
-as long as evidence is available to prove
that such a person would be affected.
For an affray,
the threat of violence
needs to be capable of affecting others.
The primary objective of the offence is to
protect the general public
- not the participants.
If There Is More Than 1
Person Present
- Need They Have A
Common Purpose?
No
— a common purpose is not necessary.
What Action Must Be
Taken By The
Accused?
The accused must either:
*Use violence; or
*Threaten violence.
The Nature Of Any
Threat Made?
Section 3(3) Public Order Act 1986
A threat cannot be made by words
alone.
Any threatening words must be
accompanied by actions.
Who Must The Use
Or Threat Of
Violence Be Directed
Towards?
The use or threat of violence can
only be directed to a person(s)
present at the scene.
NB - not towards property.
1 v DPP (2001) UKHL 10
The Hypothetical
Person Of Reasonable
Firmness Present At
The Scene
It is necessary to prove that the defendant’s
conduct would have caused a hypothetical
person of reasonable firmness present at
the scene to fear for their personal safety.
R v Sanchez [1996] 160 JP 321
What If There Is No
Possibility Of A
Hypothetical Person Of
Reasonable Firmness
Present Actually Being
Able To Be At The
Scene?
If there is no possibility
of a hypothetical person
of reasonable firmness
being present at the scene
— then no offence is committed.
R (On The Application Of Leeson v DPP [2010] EWHC 994
(Admin)
The Mens Rea For
The Offence?
The accused must either:
*Intend to use or threaten
violence; or
*Be aware that their conduct may
be violent.
Who Is Guilty?
Only the person
who either
uses violence or
threatens to use violence
against another person
is guilty.
Checklist
Affray
Step 1
Did the accused either
use violence or
threaten to use violence
towards a
person present at the scene?
step 2
Did the person(s) who used violence or
threatened violence either:
*Intend to do so; or
*Were they aware that their actions may be
violent?
Step 3
If a hypothetical bystander of reasonable firmness
had been present at the scene — would their conduct
(or if 2 or more persons used or threatened violence —
their conduct taken together) have caused the person
of reasonable firmness to fear for their personal
safety?
* If no — no offence.
* If yes — guilty of affray.
Fear Or Provocation
Of Violence
Section 4 Public Order Act 1986
Points To Prove
3 steps
Step 1
The defendant carried out
either of
2 prohibited actions.
Step 2
The defendant
has the requisite
state of mind
in respect of either of the
2 prohibited actions.
Step 3
Either:
*The defendant intended to cause either
consequence 1 or 2; or
*That either consequence 3 or 4 was likely.
Step 1
The 2 prohibited actions
Prohibited Action 1
The defendant uses
towards another person
either:
* Words; or
* Behaviour…
.that are either:
* Threatening;
* Abusive; or
* Insulting.
Prohibited Action 2
The defendant either:
* Distributes; or
* Displays;
..to another person…
-any:
* Writing;
* Sign; or
* Visible representation,
which is either:
* Threatening;
* Abusive; or
* Insulting.
Definition Of
Threatening, Abusive
& Insulting
Threatening
Includes verbal
and physical threats,
and violent conduct.
Abusive
Using degrading
or reviling
language.
Insulting
Scorning
-especially if
insolent or contemptuous.
Step 2
The defendant’s state of
mind in respect of the
prohibited action
The defendant must either:
*Intend; or
*Is aware…
.that either:
* Their words;
* Their behaviour;
* The writing;
* The sign; or
* The visual representation
are / may be either:
* Threatening;
*Abusive; or
* Insulting.
